It's World War III at the NLRB
By: Tim Mak December 26, 2011 08:57 AM EDT

Business and labor are at war over the troubled National Labor Relations Board, a site of many such previous clashes but now the flashpoint for unprecedented contentiousness.

About 200 cases, many of which would expand the power of unions, will be stalled in 2012 when an appointment expires and the five-member board loses a quorum and with it the ability to take action – unless President Barack Obama makes a controversial recess appointment sometime in the coming weeks.

Pro-union groups assert that an effective NLRB is necessary to provide clarity on gray areas in labor law.

“Without a functioning board, employers and employees are left in the dark on major legal questions – whether they have the right to organize, whether or not arbitration agreements are legal, the extent to which they have the right communicate through social media on workplace issues,” said Erin Johansson, the Research Director for the pro-union group, American Rights at Work.

But from the perspective of business groups, recent NLRB decisions have been so harmful to their interests that they prefer a non-functional board.

“We would rather have an inoperable NLRB than the type of agency that we’ve had for the last eighteen months,” Elizabeth Milito, senior executive counsel for the National Federation of Independent Business, told POLITICO.

“Their goal is to weaken and emasculate labor law – the best road of all is to make the board inoperable,” added William B. Gould, the chairman of the NLRB from 1994 to 1998, appointed by then-President Bill Clinton.

Without a functioning NLRB, workers who are illegally dismissed or disciplined for union activity will not be able to seek a remedy before the board, a number of employers can’t recognize unions, since there is no force of law without the NLRB, and no new labor rules will be issued, Gould says.

Business groups have no shortage of problems with the NLRB’s recent actions, citing a complaint against Boeing with a remedy which business groups view as unprecedented, a new rule shortening the timeframe for union elections that reduces the amount of time employers have to address the issue, and a decision that could make it easier to form “micro-unions,” which allow certain sub-groups of workers to organize without the consideration of all employees in a workplace.

A 2010 Supreme Court ruling that the NLRB must have three members to establish quorum has provided business groups with an opportunity to bring the panel to a standstill. The board currently has three members, but will drop down to two if the Senate adjourns at the end of the year as the term of controversial Obama recess appointee Craig Becker runs out.

Further, the House of Representatives has refused to sign off on allowing the Senate to go into recess, meaning that Obama has not been able to make a traditional recess appointment to the NLRB or other agencies where Republicans have declined to confirm nominees.

In a letter sent on Dec. 19, all 47 Senate Republicans urged the president not to make a recess appointment to the NLRB during the short mandatory adjournment of the Senate in between sessions of Congress.

“There would be nuclear war over the president redefining what a recess appointment is,” since presidents have traditionally not made recess appointments without an extended recess, said Fred Wszolek of the business-oriented Workplace Fairness Institute.

“It would be incredibly controversial [to recess appoint]. I expect he won’t do that,” said Randy Johnson, the Senior Vice President for labor issues at the U.S. Chamber of Commerce. “The president needs to reach out to the business community to talk about candidates, and maybe we can come up with a package.”

Regardless of the course of action the president chooses to take, it is sure that the NLRB will remain a topic of controversy in 2012.

“Whether or not the board continues to [maintain a quorum], there is going to be extreme tension between Congress and the president – a lot of fighting – as Congress is now emboldened to attack the labor board, as they have been doing in recent months,” said Gould, pointing out that although Republicans did not confirm Clinton’s nominees in the 1990s, they did at least allow him to make recess appointments.

Among the pending cases that could be stalled by the lack of quorum are four that experts say could have wide-ranging effects on employers and employees:

1. D.R. Horton

Some employers now ask, as a condition of hiring, that incoming employees sign mandatory arbitration agreements that prevent them from pursuing labor cases outside of an arbitration process set up by the company.

Employers save on legal costs as a result but this case seeks to determine whether enforcement of such arbitration agreements deny workers their rights.

Employers are particularly interested in this ruling, as it is a legal gray area that could substantially increase or decrease their legal costs.

2. Social Media: Facebook and Twitter as protected “concerted activity”?

The office of the NLRB’s general counsel has filed some complaints regarding whether online discussion of one’s superiors on social media constitutes a protected activity under labor law.

Are employees online just griping individually in a way that is grounds for firing? Or are they engaging in communications that are a protected activity?

The key question that the NLRB is trying to answer through a series of cases is whether one’s Facebook “Wall” or Twitter “Feed” is analogous to the bulletin board in the workplace, and whether certain labor rights translate to the virtual world.

3. New York University

The core of this case is whether graduate students who are research or teaching assistants can be considered students, or whether they are employees under the protection of labor law.

NYU has argued that graduate students are primarily at the university to learn, and that their work as assistants is secondary, while those pushing for unionization rights argue that assistants are employees crucial to the university’s output.

The ruling would affect labor organization efforts that are currently underway at private universities nationwide. If graduate students are in fact determined to be employees, they can be afforded the rights and protections of the National Labor Relations Act.

4. BWI Taxi Management Inc. / Supershuttle DFW Inc.

Two cases before the NLRB address the issue of airport transportation, and whether drivers are considered independent contractors or employees.

The case would settle whether taxi drivers in Baltimore and Supershuttle drivers in Dallas-Fort Worth are afforded protections and rights under labor law.

The key distinction between independent contractors and employees is the concept of control – contractors can innovate to make more money and set the terms of their work, while employees have far less control. The case will determine more exactly how to make the distinction, and which category the two groups fall into.

There are a whole slew of employers who attempt to classify their workers as independent contractors instead of employees to limit qualification under the National Labor Relations Act, many of which would be affected by the outcome of this decision.